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Vanderbilt Law Review

First Page

1343

Abstract

The 1980s were noted for the escalation of the war on drugs. The dominant public perception was that drug use is a hideous evil that must be stopped, even at a great cost of public resources and personal liberties. Parents, politicians, and law enforcement officials rallied to battle drug use.2 Tremendous expenses and limited victories did not slow the war on drugs.'It cannot be disputed that drug abuse is widespread. More than seventy million Americans have experimented with illegal drugs, and twenty-three million currently use an illegal drug.4 The costs to society include drug-related crimes, accidents, lost productivity, increased health costs, and personal suffering.' Drug users' employers bear a large portion of the costs resulting from lost productivity, accidents, illnesses,and related expenses."

Some employers have responded by requiring employees to be tested for drug use. The federal government, the Nation's largest employer, is leading the way in drug testing.8 Serious fourth amendment issues arise, however, when the government forces employees to submit to drug testing as a condition of employment. The typical urinalysis of a government employee constitutes a search without a warrant, probable cause, or individualized suspicion that a particular employee violated a law or even a workplace rule. Nevertheless, the United States Supreme Court in 1989 upheld government drug testing programs in National Treasury Employees Union v. Von Raab and Skinner v. Railway Labor Executives' Association.' These cases were among a flood of recent federal and state court decisions allowing mandatory testing of federal, state, and municipal employees and private employees in pervasively regulated industries. These rulings have led several commentators to note that a "drug exception" to the fourth amendment may be emerging.'

Part II of this Note details the executive branch's efforts to per-form drug tests on its employees and on private employees in pervasively regulated industries. Part III traces the Supreme Court's recent erosion of traditional fourth amendment protections against search and seizure. Part IV describes the Supreme Court's analysis of the executive branch's efforts at drug testing. Part V examines the analytical structure that courts use to determine the constitutionality of drug testing by the government. Part VI traces judicial trends in unsettled legal areas. Finally, Part VII concludes that the Court's reasonableness balancing test provides no concrete limit on government searches.

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